Archive | Blogosphere

The Brian Leiter-Paul Campos feud continues into the New Year. The latest: Campos is threatening to disclose “potentially very embarrassing personal information” about Leiter should the latter disclose the personal identity of “Dybbuk,” the pseudonym of a lawyer/”scamblogger” accused of harassing another law professor in blog posts and comments. Could this constitute blackmail? I’ll leave that to the crimlaw folks.

What role did the Volokh Conspiracy play in the legal battle over Obamacare? It is easy to identify two polar-opposite views on the subject: that our influence was decisive, and that it made no real difference at all. A March 2012 article in the Atlantic claimed that “[b]logs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges.” On the other hand, Yale Law School Professor Jack Balkin argues that “the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.” The support of the GOP was the main factor giving credence to a position that was “in the view of most legal professionals and academics, simply crazy.”

In my view, the truth is somewhere in between. Balkin’s emphasis on the role of the GOP has considerable validity. If Obamacare and the individual mandate had enjoyed broad bipartisan support, it is highly unlikely that the Supreme Court would have even come close to striking them down….

But such political factors are only a partial explanation of what happened. We should remember that the ACA was far from the only Obama policy that was bitterly opposed by the GOP. Republicans were just as strongly united in opposition to other administration initiatives such as the 2009 stimulus bill. At least with respect to the stimulus, there was

As Ilya noted yesterday, all the authors wrote postscripts for the book, some long, some short. Here’s my short one, focusing on the importance of blogs like the VC to expanding the range of “respectable opinion” in constitutional discourse:

In 2011, a law professor at Yale, defending Obamacare from constitutional challenge, claimed that only one “constitutional scholar that I know at a top 20 law school” thinks that Obamacare is “constitutionally problematic.” A year later, just before oral argument in NFIB, the same professor stated that only one law professor at a top ten law school agreed that the Obamacare was unconstitutional. The professor’s math was almost certainly somewhat off, but he was right that the overwhelming majority of constitutional law scholars at elite law schools thought that the constitutional challenge to Obamacare was not just wrong, but obviously so.

But there is a reason for this. The faculties at elite law schools are able to define what was “mainstream” in constitutional law simply by who they hire to join them. And Yale, to take just one example, has not hired a conservative or libertarian professor to teach constitutional law in my lifetime. According to an informed source at the law school, this is not a coincidence, as some of Yale’s constitutional law professors make it their business to block any right-of-center candidates. One can therefore interpret the professor’s claim a bit differently than he intended, to wit: I, and people who think like me, find the federalism-based arguments used to challenge Obamacare to be absurd; I and people who think like me get to choose who become our faculty colleagues; we don’t hire people whose ideas we find absurd; therefore, almost all of our colleagues at elite law schools find the challenge to Obamacare to be absurd. Put […]

Some commenters on Stewart Baker’s, Orin Kerr’s, and my own recent posts on the Obama 2012 campaign’s possible violation of the Computer Fraud and Abuse Act argue that, even if the CFAA does criminalize use of websites in violation of their terms of service, the Obama campaign did not in fact violate Facebook’s TOS, as argued by cyberlaw expert Michael Vatis. The point at issue, as I now understand it, is that FB may have different terms of access for apps as opposed to individuals, and that the Obama campaign’s intervention may have been limited to the former.

The main point of my post was not to argue this issue, but to note that even if the Obama campaign did violate the CFAA, the violation 1) did not determine the outcome of the election, and 2) should not be prosecuted. At the same time, I did say in an update that I thought Vatis’ analysis was correct, and I did implicitly endorse his conclusions elsewhere in the post. At this point, I’m not sure whether Vatis is right or whether his critics in the VC commentariat are. But I do know enough to say that there is a serious debate here, and that I should not have opined on it given my own lack of relevant knowledge. I’m not a cyberlaw specialist. And – although I use Facebook extensively – I don’t pay much attention to its TOS because I don’t think it’s likely to pose a problem for any of my uses of the site. My initial judgment was based on deference to Vatis’ expertise, combined with the fact that he is a former Clinton administration official and not likely to err on this subject out of hostility to Obama. Deference to expert opinion is often […]

Prominent lawyer and legal blogger Robert Ambrogi reports on an interesting recent decision by Massachusetts judge Peter Lauriat, who has decided to ban tweeting but permit blogging by members of the audience in his courtroom [HT: Josh Blackman]:

Does it make sense for a judge to allow blogging but ban tweeting from the courtroom? That was the question in a recent Massachusetts murder trial, and the judge’s explanation of why he did it has failed to satisfy media observers.

The recent first-degree murder trial of Nathaniel Fujita attracted national media to Superior Court Judge Peter Lauriat’s courtroom. Fujita, 20, was convicted March 7 of brutally murdering his former high school girlfriend.

Given the media interest in the case, Judge Lauriat no doubt faced a difficult challenge in balancing the right of the media to be present in the courtroom against the need to maintain order and decorum. Even so, his decision about how to handle courtroom coverage left some observers scratching their heads….

The ban on tweeting drew the unavoidable question: What’s the difference? The judge allowed blogging from the courtroom, television cameras in the courtroom, and what he described as the “pencil press” in the courtroom. Why draw the line at Twitter?….

Judge Lauriat was clearly skeptical of Twitter. When told that journalists regularly use Twitter to report from courtrooms, he asked, “And what is it that [they] disseminate in what I understand to be a hundred and forty character maximum amount with Twitter?”

In the end, his explanation for banning Twitter focused primarily on SJC Rule 1:19, a Massachusetts court rule adopted last year to govern the use of technology in courtrooms…..

The rule requires reporters to register with the SJC’s Public Information Office in order to use technology such as computers or cameras.

MORE SUBSTANTIVELY: Howard Wasserman asks about the real legal issues in this dispute. I don’t know enough about the relevant privacy rules, but it seems to me that some of the various allegations could be libelous if untrue. Does that mean the Leiter-Campos death match could end up in court? I don’t think we have enough popcorn for that.

Aside from any legal issues, it is surprising to me that no one from The Faculty Lounge has sought to clear the air on whether identifying information about anonymous or pseudonymous commenters was shared with third parties. TFL provides a valuable forum for discussion of many issues, particularly those related to legal academia (see, e.g. here), and it would be a shame to see such discussion chilled due to unfounded fears that some at TFL would not respect the privacy of forum participants. If no such information was shared, folks at TFL should say so, and if such information was shared, it […]

Mark Kleiman wonders why so many of his ideological compatriots are driven to fits of rage by Megan McArdle, noting the fevered reaction to her recent column on the Sandy Hook shooting and potential policy responses. (See also here.) Though Kleiman would not endorse everything in the piece, he thinks it’s “one of the more sensible pieces of writing about Sandy Hook,” and yet has sent some liberal bloggers into a frenzy.

In a related vein, David Hoffman notes how difficult it is to have calm, reasoned discussions on this sort of issue.

Like many of you, I’ve been horrified by the events in Newtown, and dismayed by the debate that has followed. Josh Marshall (at TPM) thinks that “this is quickly veering from the merely stupid to a pretty ugly kind of victim-blaming.” Naive realism, meet thy kettle! Contrary to what you’ll see on various liberal outlets, the NRA didn’t cause Adam Lanza to kill innocent children and adults, nor did Alan Gura or the army of academics who helped to build the case for an individual right to gun ownership. Reading discussions on the web, you might come to believe that we don’t all share the goal of a society where the moral order is preserved, and where our children can be put on the bus to school without a qualm.

But we do.

We just disagree about how to make it happen.

If anything, Hoffman understates the problem. It seems increasingly rare in political discourse for either side to consider that the other may be arguing in good faith. Why is this? One contributing factor is ideological cocooning. Many people, academics in particular, have relatively little meaningful interaction with people of opposing views. As a consequence, alternative viewpoints seem alien and hard to fathom. […]

The Volokh Conspiracy has been nominated by the ABA Journal Blawg 100 competition for the award for the top law blog in the “News Analysis” category. The winner will be determined by popular vote. Our loyal readers can vote for us (or, to be sure, one of the other worthy competitors), here.

We are also happy to note that the VC has been selected as one of the inaugural inductees in the newly established ABA Journal Blawg 100 Hall of Fame. Perhaps this puts us and the other initial inductees on par with the inaugural five members of the baseball Hall of Fame (the institution that first popularized the idea of an HOF): Ty Cobb, Babe Ruth, Honus Wagner, Christy Matthewson, and Walter “Big Train” Johnson. Eugene Volokh surely qualifies as the Big Train of legal blogging. […]

Both Dave Hoffman and Orin Kerr have recently suggested that some of the liberal legal commentators who claimed that the individual mandate was a slam dunk case for the government were doing so for the purposes of “shaping the narrative” about the case, and may not have actually believed what they said. Paul Horwitz of Prawfsblawg suggests that such advocacy blogging (at least by legal academics) is unethical.

In one sense, all blogging that expresses a position on a controversial issue is “shaping the narrative.” Whenever I write a post on a disputed issue, whether it be the individual mandate or the politics of The Hunger Games, part of my purpose is to persuade readers that I’m right and competing views wrong. I don’t think there is anything unethical about engaging in such efforts at persuasion. Indeed, they are part of what makes blogging – including blogging by academic experts – a useful enterprise.

At the same time, Horwitz is right to suggest that it is wrong for an academic to publicly “assert… with confidence a view that one doesn’t really believe, or doesn’t believe with that degree of confidence” for the purpose of influencing public opinion. Doing so attaches the veneer of academic respectability to an opinion that isn’t actually backed by the scholar’s expert judgment.

As I said in my previous post on this subject, I don’t think this is what most of the liberal commentators who claimed that the mandate was an easy case actually did. I believe that they meant what they said and said what they meant.

And, for what it is worth, I myself have never said anything in a VC post that I didn’t actually believe at the time I said it. Can I definitively prove that? Obviously not. I’m the […]

Law Daily Blogger has a list of reasons “Why Big Firms Don’t Blog well.” Most of the reasons aren’t surprising, at least not to me. Big law firms do many things well, but they don’t really have a comparative advantage in blogging. The one revelation in the post is that so many big firms seem to have blogs (41% of the Amlaw 200, according to this 2009 study), despite all the reasons why those blogs are unlikely to succeed.

UPDATE: Apparently, the Law Daily Blogger site copied verbatim – and without attribution – a 2009 post by Mark Herrmann at the Drug and Device Law Blog. I have taken down the link to the LDB post so as not to reward them for their bad behavior. My apologies to Mr. Herrmann for failing to notice this egregious copying until he brought it to my attention. […]

The NYTreports that a former CIA official is alleging that the Bush Administration sought damaging information on liberal blogger Juan Cole, a University of Michigan professor who had been quite critical of the Bush Administration’s foreign policy.. From the story:

In an interview, [former CIA officer Glenn L.] Carle said his supervisor at the National Intelligence Council told him in 2005 that White House officials wanted “to get” Professor Cole, and made clear that he wanted Mr. Carle to collect information about him, an effort Mr. Carle rebuffed. Months later, Mr. Carle said, he confronted a C.I.A. official after learning of another attempt to collect information about Professor Cole. Mr. Carle said he contended at the time that such actions would have been unlawful.

It is not clear whether the White House received any damaging material about Professor Cole or whether the C.I.A. or other intelligence agencies ever provided any information or spied on him. Mr. Carle said that a memorandum written by his supervisor included derogatory details about Professor Cole, but that it may have been deleted before reaching the White House. Mr. Carle also said he did not know the origins of that information or who at the White House had requested it.

Intelligence officials disputed Mr. Carle’s account, saying that White House officials did ask about Professor Cole in 2006, but only to find out why he had been invited to C.I.A.-sponsored conferences on the Middle East. The officials said that the White House did not ask for sensitive personal information, and that the agency did not provide it.

As a child, Razib Khan spent several weeks studying in a Bangladeshi madrasa. Heather Mac Donald once studied literary deconstructionism and clerked for a left-wing judge. In neither case did the education take. They are atheist conservatives — Mr. Khan an apostate to his family’s Islamic faith, Ms. Mac Donald to her left-wing education.

They are part of a small faction on the right: conservatives with no use for religion. Since 2008, they have been contributors to the blog Secular Right, where they argue that conservative values like small government, self-reliance and liberty can be defended without recourse to invisible deities or the religions that exalt them….

Ramesh Ponnuru, a senior editor at National Review, noted that conservatives throughout history have esteemed “mediating institutions” like schools and churches, sources of authority other than the state. “If that’s the way you’re thinking, concern for the strength of organized religion follows pretty naturally,” Mr. Ponnuru said.

I do have a small bone to pick with the article and possibly with Ramesh Ponnuru. There is a difference between being an atheist and having “no use for religion.” One can deny the existence of God, while simultaneously recognizing that religious institutions sometimes serve useful purposes. Being an atheist doesn’t prevent me from seeing that the Catholic Church runs an excellent system of private schools, for example. It also doesn’t prevent anyone from recognizing the value of “mediating institutions,” including religious ones.

At the same time, it is also the case that organized religion has often contributed to grave injustices, providing support for slavery, gender inequality, and occasionally (in the case of “Liberation Theology”) even communism. Whether a […]